Orissa High Court
Sunia Munda & Another vs State Of Orissa on 4 December, 2023
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.71 of 2012
(An appeal U/S. 374(2) of the Code of Criminal
Procedure against the judgment passed by Smt.
Madhumita Das, Adhoc Addl. Sessions Judge, Bonai in
S.T. No.93/18 of 2006 corresponding to G.R. Case No.
135 of 2006, arising out of Koira PS Case No. 24 of
2006 of the Court of SDJM, Bonai)
Sunia Munda & another ... Appellants
-versus-
State of Orissa ... Respondent
For Appellants : Ms. B.L.Tripathy, Advocate
For Respondent : Mrs. S.Pattanaik, AGA.
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :30.10.2023
DATE OF JUDGMENT:04.12.2023
G. Satapathy, J.
1. This appeal is directed against the judgment of conviction and order of sentence passed on 09.05.2007 by learned Adhoc Additional Sessions Judge, Bonai in Sessions Trial No. 93/18 of 2006 convicting the appellants for commission of offence punishable U/Ss. 302/201/34 of IPC and sentencing them to undergo CRLA No.71 of 2012 Page 1 of 15 imprisonment for life for offence U/S. 302/34 of IPC with fine of Rs.10,000/- each, in default whereof, to undergo imprisonment for a further period of one year, but no separate sentence was awarded for offence U/S. 201/34 of IPC with further direction to pay the entire fine amount, if realized to the informant.
Factual Background:
2. On a Monday on 20.03.2006 at about 6P.M. in the evening while one Basu Munda-P.W.11 and his wife Mani Munda(hereinafter referred to as the "deceased") of village Tentulidihi were passing through the house of P.W.1-Gane Munda, at that time convict Sunia Munda ran to his house situated nearby and took out a Dauli(M.O.I) and gave a blow on the right side neck of the deceased as a result, she fell down on the ground sustaining profuse bleeding injury and lost her sense. When both the convicts tried to assault the deceased again, P.W.1 managed to rescue his wife, the deceased from their clutches and brought her to the verandah of P.W.2- Sankar Nayak and screamed for help, but out of fear, CRLA No.71 of 2012 Page 2 of 15 none came to their rescue and thereafter, both the convicts took the deceased forcibly towards the jungle by dragging her to kill her. Out of fear, P.W.11 did not follow them, but on the next day morning, P.W.11 came to know from the wife of Raghu of his village that the convicts had killed the deceased and threw her dead body inside the jungle. The above occurrence was the consequence of convict Sunia Munda suspecting the deceased to have practized witchcraft for losing his son, whereas the convict Soma Munda was suspecting the deceased for losing his wife.
3. On the above incident, P.W.11 orally reported the incident on the next day morning i.e. 21.03.2006 at 7 A.M. to OIC, Koira P.S. namely, P.K.Mishra who reduced the oral account of P.W.11 into writing vide Ext.12(FIR) and registered Koira P.S. Case No. 24 of 2006 for commission of offences punishable U/Ss. 302/201/34 of IPC and he entrusted the investigation to P.W.14- Khyamsagar Panda who examined the witnesses and recorded their statement, prepared the spot map under CRLA No.71 of 2012 Page 3 of 15 Ext.13 by visiting the spot, seized blood stains & sample earth from the first spot of assault vide Ext.14, arrested both the convicts and recovered the weapon of offence Dauli(MOI) pursuant to disclosure statement of convict Sunia Munda vide Ext.1 and seized it under seizure list Ext.2. Convict Sunia Munda also identified the place of concealment of the dead body to P.W.14 who seized the wearing apparels of the deceased, blood stain & sample earth vide seizure list Ext.14. P.W.14 had also held inquest over the dead body vide Ext.5 and dispatched it to CHC, Koira for post mortem examination. On the same day i.e. 21.03.2006 at about 1.30 P.M., he seized the wearing apparels of the convict Sunia Munda stained with blood vide Ext.16 and that of convict Soma Munda vide Ext.17. On 22.03.2006 at about 7 A.M., P.W.14 sent both the convicts to CHC, Koira for collection of their blood sample and nail clippings and seized the same on production by Havildar Brundaban Patra under Ext.6. P.W.14 also obtain query report from P.W.6 Dr. Madhusudan Singh as to the possibility of injuries by CRLA No.71 of 2012 Page 4 of 15 M.O.I. and sent the incriminating materials including MOI to RFSL, Ainthapalli for chemical examination and obtained the chemical examination report vide Ext.20. On completion of investigation, P.W.14 submitted charge sheet against the convicts for committing offences punishable U/Ss. 302/201/34 of IPC under which cognizance was taken and the convicts were sent to trial. This is how the trial commenced after the convicts abjured their guilt to the charge.
4. In support of the charge, the prosecution examined altogether 14 witnesses, proved 20 documents vide Exts. 1 to 20 & identified material objects vide M.O.I to X as against no evidence whatsoever by the defence. Of the witnesses examined, P.Ws. 1 & 2 were the witnesses to the occurrence, whereas P.Ws. 3 & 12 were witnesses to the disclosure statement of convict Sunia Munda as well as witnesses to seizure of M.O.I. P.W.7 was a witness to the inquest, P.W.13 was a witness to the seizure of wearing apparels of the convicts, whereas P.W.10 was a pre-occurrence witness. P.W.6 was the CRLA No.71 of 2012 Page 5 of 15 doctor who conducted autopsy over the dead body of the deceased and P.W.14 was the I.O.
The plea of the convicts in the course of trial was one of complete denial and false implication.
5. Ms. B.L.Tripathy, learned counsel for the appellants has submitted that the learned trial Court has mis-appreciated the evidence and erroneously convicted the appellants. She has further submitted that the eye witness to the occurrence P.Ws. 1 & 2 having not supported the prosecution case, it would not safe to convict the appellants solely on the testimony of one eye witness-cum-husband of deceased-P.W.11, whose evidence should have been left out of the consideration for being an interested witness. It is further submitted by learned counsel for the appellants that the evidence of recovery of weapon of offence and dead body cannot be accepted since the same was not within the exclusive knowledge of the convicts and therefore, the conviction of the appellants being otherwise bad, illegal and unsustainable in the eye of law should be set aside. Ms. CRLA No.71 of 2012 Page 6 of 15 B.L.Tripathy has accordingly prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence.
6. On the contrary, Mrs. S.Pattanaik, learned Additional Government Advocate has, however, strongly countered the submission of the appellants by contending inter alia that there is overwhelming evidence against the appellants in terms of eye witness evidence as well as circumstance evidence of recovery of weapon M.O.I and recovery of the dead body at the instance of the appellants and human blood of the deceased being found on MOI and the wearing apparels of the convicts, there is little/no scope for interfering in the impugned judgment of conviction and order of sentence. Mrs. S.Pattanaik, learned AGA has accordingly prayed to dismiss the appeal.
7. After having considered the rival submissions upon perusal of record, this Court considers it very much essential to examine the legal sustainability of the impugned judgment of conviction by re-appreciating the CRLA No.71 of 2012 Page 7 of 15 evidence on record. In a case of murder, primarily two points are very much relevant; firstly, the homicidal death of the deceased and secondly, who is responsible for causing such homicidal death of the deceased. In order to know the nature of death of the deceased, the medical evidence requires predominant consideration. Indisputably the death of the deceased in this case was homicidal in nature which is apparent from the evidence of doctor P.W.6 who found inter alia the following:-
External Injury:
(i) Cut wound of size 4" x 2" x 2" over front neck just below the laryngeal prominence.
(ii) Cut wound of size 5" x 2" x 2" over right shoulder extending from right infra clavicular area to the tip of the shoulder.
(iii) Abrasion of size 3" x 3" over left side heap.
2. On internal examination, I found that chest wall lacerated at the infra clavicular area and right clavicle was fractured. Trachea was completely out, just below the laryngeal prominence.
Internal caroti artery, external caroty artery, jugular vein right sub clavian artery and veins were cut.
Oesophagus was completely cut at the
neck just below the laryngeal
prominence.
CRLA No.71 of 2012 Page 8 of 15
All the muscles of neck and right
shoulder were cut."
According to P.W.6, all the injuries were ante mortem in nature and the cause of death was on account of haemorrhage and shock due to cut injury over large vessels of neck and all the injuries were sufficient in ordinary course of nature to cause death of a person. Albeit the defence had cross-examined P.W.6, but it had not come out with any material to indicate the contrary to the nature of death of deceased as homicidal. Hence, it is very clear that the deceased suffered homicidal death.
8. Adverting to the next question, who was responsible for the homicidal death of the deceased, primarily the evidence of eye witness requires careful consideration. Admittedly, P.Ws. 1 & 2 being the eye witnesses had not supported the prosecution case, but the husband of the deceased being one of the eye witness to the occurrence had supported the prosecution case by testifying in the Court as P.W.11 that he along with his wife had been to the house of Sonaram (P.W.10) of village Tentulidihi to repay his loan and the convicts CRLA No.71 of 2012 Page 9 of 15 had also gone there and consumed liquor and when they left the house of P.W.10, the convicts followed them. It is the specific evidence of P.W.11 that while they reached the house of convict Sunia Munda, he brought out a Dauli(MOI) from his house and assaulted his wife on her neck by saying her as a "Witch" as a result, his wife sustained cut injuries with profuse bleeding and fell down on the ground and became unconscious and he shifted his wife to the verandah of the house of one Sankar and made her lie down there. The testimony of P.W.11 further transpired that the convict Sunia Munda and Soma Munda took the deceased towards the jungle by saying to kill her and out of fear, he did not follow them. On the next day morning, he learnt from the wife of one Raghu that the convicts had killed his wife and thrown her dead body and he, thereafter, went to Koira P.S. and orally reported the incident to the Thanababu. In the above backdrop of testimony of P.W.11, he can certainly be said to be a star witness to the success or failure of the prosecution case, but P.W.11 had not only withstood the cross-examination CRLA No.71 of 2012 Page 10 of 15 by the defence, but the substratum of his evidence remained firmly embedded to the ground since nothing substantial was elicited from his mouth to discredit his oral account of occurrence.
9. Further, the evidence of P.W.11 is corroborated by evidence of P.W.10 with respect to deceased and informant coming to his house so also the convicts Sunia Munda and Soma Munda and convicts consuming liquor. One of the critical evidence as tendered by P.W.10 was that the convicts followed the informant and deceased and on the next day, he heard that the convicts had killed the deceased Mani Munda. Much less, nothing substantial was elicited from the mouth of P.W.10 to disbelieve his evidence. This being the strong oral/ocular evidence of P.Ws. 10 & 11 which remain un-assailed, but this Court, however, now focuses to the other evidence available on record.
10. P.W.3 being one of the witness to disclosure statement of convict Sunia Munda and recovery of MOI had testified in the Court inter alia as "while in police CRLA No.71 of 2012 Page 11 of 15 custody, the accused persons led the police personnel and others including himself to the place of concealment i.e. near Gadiadihi hill where Sunia Munda gave recovery of MOI-Dauli which was seized by the police under seizure list Ext.2". P.W.3 had also identified his signature in the seizure list under Ext.2/1 and his signature on disclosure statement under Ext.1/1. It is, of course, true that the defence had made some in road to the evidence of P.W.3 by successfully eliciting from his mouth that he cannot say who out of them gave information regarding the place of concealment of MOI as well as dead body, but the prosecution not being discouraged examined to prove these facts by another witness P.W.12 who testified in the Court as "the convict Sunia Munda while on police custody voluntarily gave information about concealment of MOI under a bush near his house at village Tentulidihi and concealment of dead body of deceased near Gadiadihi nala and accordingly convict Sunia Munda gave recovery of MOI and the dead body of deceased from respective place of concealment by leading the police and CRLA No.71 of 2012 Page 12 of 15 witnesses. P.W.12 had also identified his signature on disclosure statement and seizure list vide Ext.1/2 and 2/2. On this occasion, the defence could not be able to demolish the evidence of P.W.12 with regard to disclosure statement and recovery of MOI and dead body, rather the evidence of P.W.12 in cross-examination lend assurance to other evidence as it is elicited from his mouth that P.W.3 himself and one Rama Majhi were present at the time of seizure of MOI and wearing apparels of the deceased. It was also elicited from P.W.12 in cross- examination that convict Sunia had given information regarding concealment of Dauli(MOI). The confusion of recovery of MOI and dead body pursuant to the disclosure statement of convict Sunia Munda had been set at rest by the evidence of P.W.14, the IO who had given minute details of recovery of MOI and the dead body pursuant to disclosure statement of convict Sunia Munda, which could not be demolished in cross-examination.
11. Yet there is another important circumstance, which was sending of MOI and the wearing apparels of CRLA No.71 of 2012 Page 13 of 15 the deceased and convicts for chemical examination as per the evidence of P.W.14 and the chemical examination report vide Ext.20 clearly disclosed finding of human blood stain of 'B' group on MOI as well as "lungi and full shirt" of both the convicts and the convicts could not offer any explanation as to how their wearing apparels as well as the weapon of offence which was recovered pursuant to disclosure statement of convict Sunia Munda, were stained with blood of 'B' group of the deceased. In these situations and evidence, the circumstances clearly incriminate the convicts who could not explain such adverse circumstance against them.
12. On careful and meticulous analysis of evidence on record, this Court not only found strong evidence of eye witness against the convicts, but also found unimpeachable circumstances against them which in the situation unerringly point towards the guilt of the convicts and such circumstance taken cumulatively not only excludes every other hypothesis consistent with the innocence of the convicts, but also it only establishes the CRLA No.71 of 2012 Page 14 of 15 guilt of the convicts and there being overwhelming evidence against the convicts, this Court does not find any rhyme or reason to differ with the finding of the trial Court in convicting the appellants U/Ss. 302/201/34 of IPC.
13. In the result, the appeal stands dismissed. The judgment of conviction and order of sentence passed by learned Adhoc Additional Sessions Judge, Bonai in S.T. Case No. 93/18 of 2006 are hereby confirmed.
14. Since the appellants are on bail, their bail bonds upon appeal stand cancelled and they are directed to surrender forthwith to serve out the sentence imposed.
(G. Satapathy) Judge I Agree (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Kishore Location: High Court of Orissa Date: 05-Dec-2023 17:58:41 CRLA No.71 of 2012 Page 15 of 15